Progress of Work under the CBD

In paragraph 7.3 of its medium-term programme of work (1996-1997), adopted by decision II/18 (retired as pursuant decision VI/27, paragraph 3), the Conference of the Parties decided that the issue of measures to provide information and share experiences on the implementation of Article 14 would be considered at its fourth meeting.

At its fourth meeting, the Conference of the Parties established a process for generating the necessary information that would facilitate an informed consideration on the issue of liability and redress at its subsequent meetings. By decision IV/10 C (retired as pursuant decision VII/33, paragraph 1), it invited Parties, Governments and relevant international organizations to provide the Executive Secretary with information on national, international and regional measures and agreements on liability and redress applicable to damage to biological diversity, including the nature, scope and coverage of such provisions, and information on experiences in their implementation, as well as information regarding access by foreign citizens to national courts potentially applicable to or in cases involving transboundary environmental harm. It also requested Parties to include in their national reports information on actions taken with respect to liability and redress for damage to biological diversity. The Executive Secretary was mandated by the same decision to prepare a synthesis report based on information contained in submissions by Parties and other relevant information, for consideration by the Conference of the Parties at its fifth meeting.

The call for information was renewed at COP 5, and the Secretariat was asked to update the synthesis report, based on submissions as well as developments in other international fora (decision V/18, paragraphs 6, 7). In paragraph 9 of decision V/18, the Conference of the Parties decided that it would consider, at its sixth meeting, a process for reviewing Article 14, paragraph 2, including the establishment of an ad hoc technical expert group, taking into account the outcome of the workshop and the consideration of these issues within the framework of the Cartagena Protocol on Biosafety, and the outcome of the workshop referred to in paragraph 8 of the decision, in which the Conference of the Parties welcomed the offer of the Government of France to organize an inter-sessional workshop on liability and redress in the context of the Convention. In preparation of the workshop, the Secretariat prepared , in order to assist the Workshop in its discussions, document “Liability and redress under the Convention on Biological Diversity Review of relevant international legal instruments and issues for consideration” (UNEP/CBD/WS-L&R/2). The workshop was held in Paris, France, from 18 to 20 June 2001.

At its sixth meeting, the Conference of the Parties by decision VI/11 (1) took note of the report of the Paris Workshop; (2) established a group of legal and technical experts composed of government-nominated experts with the mandate to review the information gathered by the Executive Secretary and undertake analysis of pertinent issues; (3) requested the Executive Secretary, with the cooperation of Parties, Governments and relevant international organizations, to continue information gathering and undertake an analysis of specific issues; and (4) recognized the importance of capacity-building and cooperation with respect to the prevention of damage to biological diversity and the establishment of national legislative regimes, and urged Parties, Governments and international organizations to cooperate in strengthening such national capacities. Regrettably, due to lack of financial resources, the meeting of the Group of Legal and Technical Experts on Liability and Redress, which had been tentatively scheduled to be held from 27 to 29 May 2003, did not take place.

The mandate of the group of legal and technical experts was to:

clarify basic concepts and develop definitions relevant to paragraph 2 of Article 14 (such as the concept of damage to biological diversity, its valuation, classification, and its relationship with environmental damage, the meaning of “purely internal matter”);

propose the possible introduction of elements, as appropriate, to address specifically liability and redress relating to damage to biological diversity into existing liability and redress regimes;

examine the appropriateness of a liability and redress regime under the Convention on Biological Diversity, as well as exploring issues relating to restoration and compensation;

analyze activities and situations that contribute to damage to biological diversity, including situations of potential concern; and

consider preventive measures on the basis of the responsibility recognized under Article 3 of the Convention.

The Conference of the Parties at its seventh meeting by decision VII/17 renewed the call to the Executive Secretary, as contained in its decision VI/11, to convene a group of legal and technical experts to discharge the mandate specified in that decision. The Conference of the Parties also urged Governments to make the necessary voluntary financial contributions to facilitate the convening of the group of legal and technical experts. With the financial support of the European Community, the Group of legal and technical experts on liability and redress in the context of Article 14(2) met in Montreal, Canada from 12 to 14 October 2005 .

The Conference of the Parties at its eighth meeting by decision VIII/29 welcomed the report of the Group of Legal and Technical Experts on Liability and Redress. Through its decision VIII/29.2 the Conference of the Parties invited Parties and other Governments to submit to the Executive Secretary examples of national/domestic legislation and case-studies relating to liability and redress for damage to biological diversity, including approaches to valuation and restoration, and requested the Executive Secretary to compile this information and disseminate it through the clearing-house mechanism. Decision VIII/29.3 further requested the Executive Secretary to gather and compile technical information relating to damage to biological diversity and approaches to valuation and restoration of damage to biological diversity as well as information on national/domestic measures and experiences, focusing in particular on the issues identified in the conclusions of the Group of Legal and Technical Experts on Liability and Redress and to prepare a synthesis report for examination by the ninth meeting of the Conference of the Parties. In response to these requests, two notifications (2006-032 and 2007-041) were transmitted to Parties and other Governments, as well as a letter to relevant organizations inviting them to provide information in relation to the points raised in decision VIII/29 paragraph 2 and 3. The submissions received from Parties and other Governments are available here.

The Executive Secretary prepared the synthesis report (UNEP/CBD/COP/9/20/Add.1) called for in Decision VIII/29 and provided it to the Conference of the Parties for consideration at its ninth meeting.

In Decision IX/23 the Conference of the Parties welcomed the synthesis report and requested the Executive Secretary to make it widely available through the clearing-house mechanism. It also reiterated its call to Parties, Governments and relevant international organizations in paragraph 4 of decision VIII/29 to cooperate with a view to strengthening capacities at the national level with regard to measures for the prevention of damage to biological diversity, establishment and implementation of national legislative regimes, and policy and administrative measures on liability and redress, and to provide financial resources for this purpose. It decided to consider at its tenth meeting the need for future work in this area as part of its consideration of a revised and updated Strategic Plan, as well as a multi-year programme of work for the period 2011-2020.